The Problematic Aspects of the Injunction in the Idaho Same Sex Marriage Case

I was reading a discussion on a list serv that I thought would be of interest to readers. The discussion involved the injunction issued by a federal magistrate in Idaho banning the enforcement of a law against same sex marriage. I had not realized that the injunction ran against all people in the state. This appears to be problematic.

It is one of the scandals of our time that federal district courts (not to mention magistrates) issue injunctions against all people in a state when the power of the district court really only extends to the parties in the case. This is one of the ways that courts exercise unjustified power.

The courts can exercise similar power in ways that do conform to existing law. If the decision were appealed to a federal appellate court, then the circuit court decision would function as a precedent that would be binding on all district courts (and circuit court panels) within the circuit. Thus, the law of precedent would operate to bind other people in the area who were not parties to the case.

Now, one might worry about this power. A sued B and won. Is it fair that C, who is in a similar situation to B, should lose his rights, even though C was not involved in the earlier lawsuit? On the one hand, it does seem unfair. But on the other hand, C can bring a lawsuit, lose in the district court and the circuit court due to precedent, and seek review from the Supreme Court. So C does have a chance to litigate, although with a much reduced chance of prevailing. If we are to have a doctrine of precedent, this unfairness is unfortunately a part of the system.

Another situation involves what is called nonmutual collateral estoppel. That is, if person A prevails against person B, then B is bound by the ruling as to person C as well, even though C was not part of the original lawsuit. This doctrine could potentially be used against the federal government or the state, where the government is in the position of B. But nonmutual collateral estoppel does not apply against the federal government, so that won’t work. At the state level, however, things are less clear. The Supreme Court has not indicated whether monmutual collateral estoppel applies against a state, and the lower courts appear to be mixed on the issue.

The basic point here is that the injunction issued in this lawsuit is problematic. It does not apply on its own against people who are not parties to the lawsuit. This decision might operate against the state if the state is subject to nonmutual collateral estoppel – but it is not clear that this is the correct rule. And most importantly, the magistrate did not address this matter in issuing the injunction and therefore did not justify her decision.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013. Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

by George A. MocsaryThe great public service of the law-and-economics movement has been to expose the collateral consequences of policymakers’ actions. In Getting Incentives Right: Improving Torts, Contracts, and Restitution, law-and-economics scholars Robert…

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